The Concept of Forgiveness: Australian Law vs Islamic Law - Coursework Example

Australian Law v Islamic Law Introduction The Australian legal system is based on the common law. One of its significant features is the separation of powers between the executive, legislature, and judiciary. The judiciary develops legal provisions, via its case law; and these two constitute the source of the Australian legal system1. There are three fundamental sources of Australian law, namely, the Constitution, Legislation, and the Common Law. Legislation includes the Acts and Statutes of Parliament, the subsidiary legislation or the delegated legislation, and regulations. The rules and Orders of the Legislative Councils constitute another source. The judge made law serves as a source from the common law system2. Islam is theology in a legal garb, and it requires individuals to serve to God and their fellow human beings. It states that the precepts and tenets of the Holy Quran are absolute in nature and to be scrupulously obeyed by all. The Quran’s teachings constitute the law, and it imposes a number of obligations on individuals, which have to be fulfilled by them. It does not differentiate between ethics, morality and law, and it imposes a duty on the state to implement the Shariah Law, which should be the highest authority in the State. The Shariah law takes precedence over the Constitution in all aspects3. The Quran does not differentiate between ethics, morality and law. It imposes a duty on the state to implement the Sharia Law, which has to be the highest authority in the State. Thus, the Sharia law takes precedence over the Constitution, in all aspects4. Sharia means the Revealed Law. There are two main sources to Sharia, namely the Quran and the Sunnah. However, the interpretations of the Islamic Law principles are not uniform5. Objectives To compare the concept of forgiveness in the Australian and Islamic legal systems. Concept of Forgiveness in the Islamic Law The term Sharaiah connotes the Revealed Law, and it is derived from the word Shara’a, which means to introduce, enact or prescribe. There are two primary sources to Shariah, namely the Quran and the Sunnah. Islamic Law has an enormous literature. Muslims consider it as their sacred literature. However, the wide range of literature and interpretations of the Islamic Law principles lacks uniformity; and differs from nation to nation. The Shariah Law categorises the actions of Muslims into several classes, such as the prohibited actions, obligatory actions, reprehensible actions, recommended actions, and permissible actions6. The tenets and precepts of the Islam were developed over a period of 1400 years, and they involve a complex jurisprudence. The Islamic jurisprudence did not evolve from the doctrine of precedent. Moreover, it is not founded on any codification of legislation, and depends on scholarly interpretation. The Quran is the source of Islamic law. Islamic scholasticism developed from the immutable notion of revelation, which was originally revealed orally, and subsequently committed to the written word7. The Shariah is neither malicious not unforgiving, as a penal system. Moreover, it is not a ruthless penal system that concentrates on only the imposition of punishments. In fact, it is an ethical code that encompasses a broad spectrum of morals and values. Thus, it is a comprehensive legal system that strives to establish universal peace, compassion, and forgiveness. It aims to establish a utopian society that is founded on noble ideals and values8. This law identifies just four to six grave crimes. It imposes punishments according to the gravity of the crime. Murder is not included in the category of serious crime; and punishment for the non serious crimes is determined through arbitration. In respect of such crimes, the Shariah allows the victim or his family to pardon the offender. No other legal system permits clemency or forgiveness towards an individual who kills another person. Furthermore, some penal systems of the west invariably impose capital punishment for murder9. This is a major distinction between the Shariah and some of the penal systems of the west. The Sharia deems homicide and bodily harm as tort and criminal activities. It imposes three types of penalties for these offenses, namely, Qisas, Diya, and Kaffara. Under Qisas, the punishment will be retaliatory. The Diya imposes compensation under the concept of blood money, whereas the Kaffara is a reformatory process that includes penitence for the crime committed. The Qisas require the injured party to take retaliatory action against the accused party, by inflicting the same harm against the latter did during the attack or offence10. In this law, capital punishment is subjected to arbitration and is governed by the concept of dhawabit or checks and balances. Such, punishment is imposed only after a fair trial had been conducted, and a thorough consideration had been made of all the extenuating circumstances. In this system, the State is not empowered to impose capital punishment; it possesses only the power of execution11. In the crime of murder, the perpetrator violates three distinct rights, under the Shariah. These are; first, the haqq al-‘abd, or the right of the victim and his family; second, haqq al – mujtama, or the right of the society to peace, safety and tranquillity; and third, the haqq al – lah, or the right of God. The courts address only the first two of these rights, namely that of the victim and society. In the context of the third right, God might grant clemency to the killer, irrespective of the feelings of the general public or the family members of the victim12. As such, in cases of murder, the heir of the victim can initiate retaliation against the offender. In instances of bodily harm, resulting in injury, the victim is encouraged to take revenge by inflicting injury on the perpetrator. The only condition for such punishment is that both the victim and the guilty person must be equal, or the victim should be superior to the guilty, in respect of religion and freedom13. Ijma law is founded on the concept of consensus or agreement among a group of muslim scholars called the Ulma. This type of consensus may be expanded to the whole muslin community or Umma14. According to the Quran, God dislikes shirk or polytheism; but forgives any other transgression, if is so pleases Him. The family of the victim is affected to the maximum extent. Consequently, the Shariah reserves the right of clemency or qisas to the family of the victim. The latter can pardon the murderer; and it is to be stressed that the State cannot exercise the right of qisas, if the victim’s family does not feel disposed to forgive the offender. As such, the State cannot grant clemency to an offender, of its own accord15. The State can adopt other measures to safeguard public interest and to protect the public, under the concept of maslahah. These measures include confinement and exile, which have lesser retributive but a deterrent effect. The Islamic Law imposes several restrictions on the State, due to the fact that as an organ of the State, any restriction on the State automatically applies to it16. Thus, Islamic Law restricts the power of the State to deprive the life of its citizens. This is indicative of the anticipatory nature of Islamic Law, because the State could be oppressive, the judiciary compromised, or the State could be compelling the judiciary to act in an inequitable manner. Alternate restorative justice is provided in instances of Quisas crimes. The retributive punishments for these crimes assume the form of Diyya or reconciliation. In these cases, the Wali amr or the legal guardian of the victim, the victim or the family members of the victim may forgive the criminal and seek to alternate punishment for the offender. In Quisas crimes, only the victim can grant forgiveness to the offender. In other type of crimes, forgiveness is conditional. In such crimes, the provision of Diyya or compensation is a complex process. The consent of the offender is required for these claims, and refusal on the part of the offender, results in the infliction of punishment under the Quisas17. If the offender agrees to pay Diyya, then the predetermined amount will have to be paid. The period in which such payment has to be made is determined during the trial. If the offender does not have sufficient financial resources to pay Diyya, then his close relatives will be held responsible for the payment. The relatives are exempted from the payment of Diyya, in the case of offenders, who are female or juvenile. Moreover, if the offender agrees to pay Diyya and has no close blood relatives, the State has to pay compensation to the victim or victim’s family. If the offender is subsequently, proved to be innocent, then Diyya will be revoked. The Diyya can also be revoked if victim expresses the desire to discontinue the payment and then dies18. It has been contended by some scholars that Diyya should be discontinued, after fifteen years if there are no legal heirs. The Quran does not stipulate the amount of payment to be made under the system of Diyya. However, the shariah jurists had established over a period of time that the Diyya amount should not be less than the value of 100 camels19. This is the minimum standard under the Shariah. Errish is a system, in which, compensation is made commensurate to the value of the damage or loss caused, in cases of non – fatal injuries and of loss of pregnancy due to physical violence and broken bones. The compensation systems of the western criminal justice systems and the Diyya under Shariah are dissimilar20. The Diyya entails punitive damage, and penal amount is given to the victim or his family members, and not the State. Solh is a process of reconciliation, which is not an alternative to Diya. This process is greatly preferred, when the injuries caused to the victim are of a non – fatal nature. This process transpires in the presence of the authorised guardian of the victim or Wali amr, and is deemed to be part of forgiveness. Solh does not take place, invariably in all cases, involving injuries; and it need not be carried out between all injured parties and offenders. It can even be conducted between the offender and one of the injured parties21. Cases, involving Quisas are generally commenced on the basis of the complaints made by the victim or the family members of the victim. On the other hand, Diya and Solh can be initiated, only if the victim or family of the victim is agreeable to forgiving the offender22. The offender is provided with the choice to pay compensation under Diya, and thereby change the Quisas punishment into an exercise in restorative justice. In general, the Wali amr is appointed by means of the authority of an elected ruler. His duty is to ensure equitable punishment for crime. The Wali amr plays a significant role in the entire process of determining punishments, Diya or other systems. He arranges meetings between the offender and the victim or family members of the victim; and acts as a mediator in such meetings, and is responsible for the peaceful resolution of the crime or the infliction of punishment upon the offender23. The Shariah also contains other category of crime, namely, the Tazir crimes. This system involves forgiveness and less stringent punishment. In the Tazir, punishment can be revoked, under four situations; first, death of the offender; second, due forgiveness by the victim, which is then confirmed by the judge; third, if the offender and victim set aside their differences and absolve each other, before the matter is taken up by the judge or ruler; and fourth, if the offender repents24. In restorative justice system of Islam, the victim or the family of the victim, the offender and representatives of the community are required to participate in the negotiations. The victim is very important in this system, as it is left to his discretion, whether to forgive the offender. However, the offender can accept or refuse to pay the specified compensation. The community selects the Wali amr who is responsible for resolving the dispute. It is essential for the community to exercise great care, whilst deciding the guilt of the offender, because the punishment imposed in this system is very harsh25. Consequently, on many an occasion, judgments is kept in abeyance. The criminal law under the Shariah is a complex law, which had been developed on the basis of a number of Islamic practices and traditions. The Ulama is the chief guardian of the Sharia, who plays a major role in its enforcement. The Sharia was a written law that influenced the Western imperial powers, in their indirect rule over North Africa, the Near East, and the Asian subcontinent. Modern Muslim States follow the Sharia, in order to establish their Islamic identity to the rest of the world26. In criminal law, many of the modern Muslim countries follow the precepts and rules of the Sharia. Islamic activism and revolutions have rendered the Sharia the law of the land, in Muslim countries. Quisa or retaliation in Islamic law was founded on the individual right of the victim, and it was linked to his nearest relation to decide the punishment for the offender. These punishments were generally of a retaliatory nature, and were of the form of an eye for an eye. Blood money could be accepted as compensation or the victim could be forgiven by the victim without the imposition of any conditions27. The Quis is a type of law that deals with similarity or parallelism. The Quias was developed on the basis of the primary sources of law, namely the Koran and the hadiths28. The underlying concept of such law is reasoning, which dominates decision making. Moreover, Maslah is based on the public benefit concept. In this type of jurisprudence, the law will be based on the requirements of the situation. In some situations, where the Quran, Sunnah or Gyas do not regulate the laws, the Maslah form of law will prove to be very beneficial29. As such, decisions in this system are based on equitable principles. Keeping in view all these possibilities, Islamic law introduced a system of checks and balances on the legal system. God provides the right to seek qisas to the family of the victim. The underlying meaning of this provision is that God encourages it to forgive the sin of the murder and to provide clemency. The Quran says that forgiveness causes more pain to the perpetrator of the crime than taking revenge against him; and it cannot be gainsaid that forgiveness is far superior to punishment30. Community Correctional Services in Australia In Australian jurisdictions, there are three types of supervisory orders; namely, probation, community service orders, and parole. These orders are aimed at supervising offenders. The probation order puts an offender under the supervision of the police; whereas the community service orders require the offender to render some manner of service to the community, as reparation for the offense committed by him. Finally, the parole supervises the conduct of an offender after release from prison31. Community corrections are non – custodial punishments and offender under these programmes are subjected to strict supervision, conditions of the order and restrictions on their freedom of movement. These punishments are imposed, as part of reintegrating offenders into the community. Other alternate punishments include post – custodial programmes; such as parole, release on licence, pre-release orders and house arrest. Courts issue these correctional orders, which impose sentencing sanctions, suspended sentences, court – directed house detention, community service initiatives, probation, and supervision orders32. Community correctional services are aimed at reintegrating offenders into the community and in preventing recidivism. An opportunity is offered to offenders, whereby they can cease to be recidivists, and transform themselves into law abiding citizens. Addressing crime is difficult, because of the complex issues that encourage such behaviour. Research in this area has recommended that there should be a provision of employment, family support and housing to the offenders33. In Australia, the number of community correctional services imposed by the courts is higher than the number of imprisonment orders. However, in the five – year period from 2000 to 2004, the community custodial rate has declined. In the year of 1999 to 2000, it was 402.2 per 100,000 adults, which declined to 331.6 per 100,000 adults in the period 2003 to 2004. The rate of such decline was steady. At the same time, the rate of imprisonment had increased, in that period, from 143.5 to 150.2 prisoners per 100,000 adults34. The Department of Correctional Services has entered into partnership with several State and Federal Government agencies, to this end. A major objective of these initiatives is to address the factors that contribute to growing crime. Another important aim is to ensure the safety of the community35. These goals can be achieved by initiating the process of rehabilitation and by establishing offender management systems. The avowed purpose of these processes is to integrate offenders into the community and to diminish offending. Forgiveness in Islamic and Australian Legal Systems The fundamental belief in the rule of law, justice and freedom of the judiciary are the founding stones for the Australian legal system. This legal system treats all people equally before it. The legal system of Australia protects individuals from being treated arbitrarily or unfairly on the basis of gender, race and religion by the government and its officials. These elements are inherent in the legal system of Australia and they are its fundamental features. The UK had developed the common law system, and Australia adopted this system, while establishing its own jurisprudence. The common law system differs significantly from the civil law system, which is prevalent in Japan, and the countries of Europe and South America36. Its judiciary adopts the doctrine of precedent, in order to deal with the cases brought before it. Moreover, the decisions made by the higher courts are binding on the lower courts. Similarly, the decisions of full courts are binding on single judge-courts37. In the Australian context, some of the punishments imposed on an offender result in the incapacitation of the offender from the mainstream of the society. This has a deterrence effect on not only the offender, but also those who are envisaging the commission of a similar crime. The victim of a crime or an offense, experiences suffering, on account of the criminal act; and it is felt that the perpetrator should experience, at the minimum, the same level of pair or suffering. This system is far removed from the concept of forgiveness, which predominates in the Islamic system. In contrast to retribution or rehabilitation, incapacitation, which is the usual outcome of a term of incarceration, constitutes the most severe form of punishment. Such punishment ensures that the offender does not reoffend, immediately in the future, once such punishment is inflicted upon him38. Due to the infliction of such punishment, the probability of recidivism by an offender is greatly minimised. Punishment in the form of deterrence, in general, has two different outcomes. First, deterrence prevents the offender from committing crimes in the future. Second, deterrence dissuades others from committing crime, because it provides a stern warning that if they commit similar crimes, they would also be punished, in the same manner and with the same severity39 . This constitutes the central idea, behind the imposition of punishment and the seeking of retribution against the offender. This principle is followed in the US legal system, where the motive behind inflicting punishment, on an offender is to exact retribution. In Australia, retribution is one of the purposes behind sentencing or punishment40. However, it is not the sole motive, behind the award of punishment. In the Australian legal system, punishments are imposed, in order to effect the rehabilitation of the offender and thereby control and mitigate future offenses by the offender. Islamic law is a wide spread legal system bearing some resemblance and also some difference to the Australian legal system. The Quran and the other traditions like the Sunnah, constitute its basic laws. As such, religious sources are the basis for the Islamic legal system. In Common law systems, like that of Australia, the laws are not related to religious sources. According to the Muslim ideology, Sharia law is based on the preaching’s of Allah. The punishments enjoined by the Sharia are inhuman. As per the Muslim contention, if punishments are implemented properly, they will be beneficial in deterring the crime. In Islamic law humanitarian considerations are of much less significance in cases of serious crimes, like murder. For instance, the crimes of adultery and sodomy attract the death penalty. In Australian jurisdictions, community supervisory orders are put under three heads; namely, probation, community service orders, and parole. These orders are meant for mitigating the punishment of convicted persons. The probation order brings an offender under the supervision of the police. The community service orders require the offender to provide some sort of service to the community, as reparation for the offense committed by him. The parole supervises the conduct of an offender after release from prison. These supervisory orders are meant to be methods for reducing punishment for crime. Conclusion Forgiveness in the Islamic legal system was explained primarily by the Quisas law. In this system an offender may be punished or acquitted, in accordance with the will of the victim or his nearest kin. In Australian law the corresponding law is the Community supervisory orders. From the above discussion, it is evident that Islamic Law accords prime importance to forgiveness of the offender’s crime; which is quite alien to western legal systems, including that system prevalent in Australia. In Islamic Law, if the victim or his family so desires, the offender is allowed to go scot free. The Shariah constitutes the basis of Islamic Law, which is therefore based on religion. The aim of Islamic Law is to make every member of society law abiding and God fearing. In instances, where the offender is unable to pay compensation to the victim or his family, the state takes it upon itself to discharge this burden. This indicates the profound significance accorded to forgiveness. This is singularly absent in Australian Law, which only aims at reducing recidivism and reintegrating the offender into society. There is no element of compensation to the victim involved in the Australian legal system. Therefore, fostering forgiveness for the offender is accorded much lesser importance in the Australian system, in comparison to the Islamic system. Due to interaction between the victim and the offender, the latter realises the evil of his ways and this in turn makes him repentant. A comparison was made between the Australian and Islamic Legal systems and their major principles were examined. From this initiative, it was surmised that both these systems had their own advantages and disadvantages. However, forgiveness is the greatest among all other virtues, since it promotes peace and unity in society. It can be concluded that the concept of forgiveness, which prevails in the Islamic legal system, can be adapted by the Australian legal system. This is due to the fact that the concept of forgiveness promotes compassion and greater responsibility towards the community. Moreover, the victim is equitably compensated for his loss, in the Islamic system, which is not possible in the other legal systems, including the Australian legal system. Bibliography 1. Articles/ Books Hadley, M. L. (2001). The spiritual roots of restorative justice. SUNY series in religious studies. Publisher SUNY Press. Hooker, M. (2002). Introduction: Islamic Law in South-east Asia. Asian Law , 4, 213 – 231. Levinson, D. (2002). Encyclopedia of crime and punishment. SAGE. Winterdyk, J. (2004). Adult corrections: international systems and perspectives. Criminal Justice Press. 2. Other Sources al-Hibri, D. A. (2001). Capital Punishment in the United States: an Islamic Perspective. Retrieved January 28, 2010, from http://www.karamah.org/docs/azizah_cappunishment.doc Australian Institute of Criminology. (2001). Australian crime: facts and figures 2000. 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